Beldner v. General Elec. Co.

• Decision Date: 09 February 1970
• Docket Number: No. 1,No. 54116,54116,1
• Citation: Beldner v. General Elec. Co., 451 S.W.2d 65 (Mo. 1970)
• Parties: Lester BELDNER and Ann Beldner, Plaintiffs-Appellants, v. GENERAL ELECTRIC COMPANY, and Kate Jones, if living, and if dead, then the unknown heirs, grantees, devisees, or successors of Kate Jones, Defendants-Respondents
• Court: Missouri Supreme Court

Page 65

451 S.W.2d 65

Lester BELDNER and Ann Beldner, Plaintiffs-Appellants, v. GENERAL ELECTRIC COMPANY, and Kate Jones, if living, and if dead, then the unknown heirs, grantees, devisees or successors of Kate Jones Defendants-Respondents.

No. 54116.

Supreme Court of Missouri, Division No. 1.

Feb. 9, 1970.

Motion for a Rehearing or to Transfer to Court En Banc

Denied March 9, 1970.

Marvin Klamen, Clayton, for appellants.

William H. Ferrell, Fortis M. Lawder, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for defendant-respondent, General Electric Co.

G. DERK GREEN, Special Judge.

Each of the parties to this action claims title to the same Missouri real estate and prays the judgment of the court finding and quieting the title in the pleader. From an adverse judgment the plaintiffs appeal. The jurisdiction on appeal is in this court. Sec. 3, Art. V, Constitution of Missouri, V.A.M.S.; Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569.

Appellants, hereinafter referred to as plaintiffs, filed petition on July 13, 1964, filed amended petition on March 9, 1965 and on September 2, 1966 amended this petition by interlineation. In its final amended state, the petition alleged actual, open, notorious, adverse, continuous, undisputed, peaceful, exclusive and lawful possession of Lot 62 in Block G of the North Cabanne Subdivision in the City of Wellston, Missouri for more than ten (10) consecutive years next preceding the 28th day of August, 1961 and that such possession so continued until the filing of the petition. It also asserts certain easement or roadway rights over said lot and adjoining Lots 61 and S 1/2 of 63.

Respondent General Electric Company denied the allegations of the petition concerning the possession of Lots 61 and 62 by plaintiffs and in a counterclaim asserted title to those lots and the S 1/2 of Lot 63 by reason of a deed dated May 13, 1964. Other allegations of the Answer and Counterclaim will be referred to as they become pertinent to the issue discussed.

Plaintiffs also joined in the amended petition one Kate Jones as a former record title holder of Lot 62. A guardian ad litem appointed for her unknown heirs, grantees, devisees or successors participated to a limited extent in the trial, but has not appealed from the judgment of the court. References to the defendant herein will intend only the General Electric Company, a New York corporation.

The law with reference to establishing title by adverse possession has been often considered and the rules well defined. In order to establish title by adverse possession, plaintiffs had the burden of proving that they and those under whom they claim had possession of the land so claimed for the statutory period (10 years) and that such possession was actual, hostile, under claim of right, open and notorious, exclusive and continuous for the whole prescribed period of time. Hamburg Realty Company v. Walker, Mo.Sup., 327 S.W.2d 155; Feinstein v. McGuire, Mo.Sup., 297 S.W.2d 513; Miller v. Warner, Mo.Sup., 433 S.W.2d 259. We will first consider whether plaintiffs have sustained their burden of establishing all of the elements of adverse possession essential to establishing title to Lots 61 and 62. The case was tried before the court without a jury, and we must review it upon both the law and the evidence as in suits of an equitable nature. Supreme Court Rule 73.01(d), V.A.M.R.; Mueller v. Larison, Mo.Sup., 355 S.W.2d 5.

Block G of the North Cabanne Subdivision is bounded on the north by Etzel Avenue, on the south by Spencer Place, on the west by the Wabash Railroad, and this particular portion of the block is bounded on the east by a small stream or creek known as River Des Peres. It is 200 feet between Etzel Avenue and Spencer Place. The block is divided into two tiers of lots, each being 100 feet north to south and 20 feet in width east to west except the most westerly lots adjoining the Wabash Railroad and these are wider at the north end than at the south end, due to the fact that the railroad crosses the east-west lines at a southeast-northwest angle. The lots on the south half of this block abut or front on Spencer Place, each with a frontage of 20 feet, except for Lot 63 which is next to the railroad and has a frontage on Spencer Place of only 14 feet. Next to the east on Spencer Place is Lot 62, and next to the east of that is Lot 61. The lots in the north half of this block are of the same size, with the exception of Lot 1 next to the railroad property and this is 40 feet 4 3/4 inches at its north end and 13 feet 10 1/2 inches at the point it joins Lot 63. Next to this is Lot 2 which also abuts Lot 63 on the south, the northerly line of Lot 63 being 33 feet 10 1/2 inches. Next to this is Lot 3 which abuts at the east-west center line of the block with Lot 62 and next to the east is Lot 4 which is directly north of Lot 61 and has a common boundary with Lot 61 at the center of the block.

Prior to March 31, 1959, Lot 3 and the north 50 feet or north half of Lot 63 were owned by the Marvel Oil Company and on that date the Marvel Oil Company executed a warranty deed conveying to plaintiffs said Lot 3 and the north 50 feet of Lot 63. Prior to the making of this deed, the Marvel Oil Company had been operating a fuel oil and gasoline business at this location and at the same time as the transfer of the real estate, this company sold to the plaintiffs the fuel oil business and items of personal property used in that business. The Marvel Oil Company, as it existed prior to March 31, 1959 was a corporation. On or about March 31, 1959, the plaintiffs took possession of the property at this location, both real and personal, and continued with the operation of a fuel oil business in much the same manner as had been conducted by the Marvel Oil Company previously, doing business under the name of Marvel Fuel Oil Company, although it was individually owned by the plaintiffs. They continued to so operate the business until the time of the filing of this action.

The plaintiffs did not testify in the trial. It was explained that plaintiff Lester Beldner had suffered a heart attack some time previously, and it was indicated that he was not physically able to appear in court. The principal testimony as to the occupancy and conditions thereof during this five-year period immediately following the transfer by Marvel Oil Company to plaintiffs and to the filing of the suit came from the plaintiffs' son, Mark Beldner. At the time of the trial, this witness was 23 years of age, which limits to some extent the period of time covered by his testimony. He said that there was a written contract at the time his father acquired the assets of the Marvel Oil Company but this written agreement was not offered in evidence. They bought the property through a real estate agent, received an itemized list of assets the company was to transfer and went to the premises before completion of the transaction to see exactly what they were buying. At that time, they found steel tanks and loading facilities, pumps and other equipment on the north half of Lot 63 and found an office building, warehouse and garage on Lot 3. At the extreme southern end of Lot 3 was a one-story metal building used as a garage and warehouse. This building was 19 feet 4 inches wide, east to west, and 48 feet 10 inches long, north to south. The south edge of the building was directly on the property line between Lots 3 and 62 and extended over all but 8 inches of that common boundary. Entrance to this building was by two swingout garage-type doors on the south end and these doors, when opened, extended out over Lot 62. There were a number of steel tanks, 25-gallon drums and 5-gallon drums in this area, some were in the warehouse and some were outside on Lots 62 and 61.

From the time they purchased this business, they continued to use the bulk plant and the whole operation as it had been used previously, supplying fuel oils and gasolines to customers and delivering those products in a retail and wholesale business. They made and blended their own motor oil. They blended the oil and put it in smaller cans or barrels and placed these on the lots to the south of the garage building or warehouse until they had need for them. They also stored empty cans or barrels on these lots until they were needed to be filled. At the time of the purchase of the business, there was one 2,000-gallon tank sitting on Lot 61. This was later moved and used for storage of gasoline. The Marvel Oil Company had conducted a similar business, making their own oil and with the transfer of the business to plaintiffs, one of the previous owners demonstrated to them the use of the equipment.

The metal building used as a garage or warehouse and located on the south end of Lot 3 was reached through the garage doors mentioned herein as opening out over Lot 62. During this last five-year period, motor vehicles belonging to plaintiffs were stored in this garage or warehouse during the night and on occasions when the business was not in actual operation. Usually three trucks were stored in this building when they were not in use for making of deliveries, but one particular truck was placed there every evening because of the hydrochloric acid gas, chlorine and other things kept on the truck that might be disturbed by vandals or be dangerous to people coming into contact with it. The only means by which these trucks could be placed in this building on Lot 3 was by driving them from Etzel Avenue over the Wabash Railroad right-of-way, over the north end of the south half of Lot 63 and over Lot 62 into the building. Generally the trucks were backed into the garage and this was accomplished by driving them southward over Lot 62 to Spencer Place and backing them northward on Lot 62 into the garage.

At one time, a part of this building was sublet by plaintiffs to a plumbing company for the storage of lead pipe and plumbing fittings and that company...